Citation Nr: 1401340
Decision Date: 01/10/14 Archive Date: 01/23/14
DOCKET NO. 10-13 324 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for sleep apnea.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and his wife
ATTORNEY FOR THE BOARD
L. Jeng, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from October 1983 to April 2005.
This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in part, denied the Veteran's claim of entitlement to service connection for sleep apnea.
In August 2011, the Veteran presented testimony in a video conference hearing before the undersigned. A copy of the transcript has been associated with the claims folder.
In a February 2012 decision, the Board denied service connection for sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2013 Memorandum Decision, the Court vacated the Board's February 2012 decision denying service connection for sleep apnea.
The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The Veteran essentially contends that he has sleep apnea related to service. He and his wife testified that he had symptoms of sleep apnea (loud snoring and gagging) beginning in 2000. He was afforded an examination in February 2011, the report of which reflected a diagnosis of obstructive sleep apnea. Upon review of the claims folder and evaluation of the Veteran, the examiner opined that there was no objective evidence that the Veteran had sleep apnea during service and that his current symptoms were not related to the issues during service. In support of her opinion, the examiner cited to the lack of complaints related to sleep problems during service except for one positive answer on the questionnaire at service discharge. She observed that the Veteran consistently denied having frequent trouble sleeping. See e.g. 2000 and 2002. The examiner further noted that the Veteran did not report any sleep issues to his primary care doctor until over a year after starting care.
The Board finds that February 2011 VA examination report is inadequate. While the examiner noted the one entry at service discharge in which the Veteran reported sleep problems, the basis for her opinion is the lack of documented notations of sleep problems during service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, the Veteran and his wife indicated that he had symptoms of sleep apnea dating back to service. In this regard, the Board notes that the Veteran and his wife are competent to report his sleep symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). A close reading of the 2011 VA examination report shows that while the examiner outlined the Veteran's account of his history of onset of symptoms, the examiner did not adequately address the Veteran and his wife's credible reports of sleep problems in service. Therefore, on remand, the Veteran must be afforded another examination to determine the nature and etiology of any current sleep apnea, taking into account his and his wife's assertions as to service incurrence and continuity of symptoms since that time. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate).
Accordingly, the case is REMANDED for the following actions:
1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current sleep apnea. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. The examiner must indicate on the examination report that she/he reviewed the claims folder.
All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should elicit a complete history from the Veteran.
Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that current sleep apnea is related to service. The examiner must address the Veteran and his wife's testimony regarding onset of and continuity of symptoms during and since service.
As explained above, the examiner is cautioned from focusing his/her opinion on the lack of evidence of complaints during service.
The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.
Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion.
2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).